Showdown in the Senate Stalls Patriot Act Extension

The USA Freedom Act failed to clear a procedural hurdle in the Senate during a session that stretched into the very early hours of Saturday morning. Senators also blocked a two-month extension of Section 215 of the USA Patriot Act, which has been broadly interpreted to allow the National Security Agency to conduct mass surveillance on law-abiding Americans, in a showdown between two Kentucky senators.

Senate Judiciary Committee Chairman Richard Burr, R-N.C., introduced substitute language of the USA Freedom Act. The Senate version of the bill is different, Burr says, because it “provides a longer transition period to ensure that the metadata collection process moves properly to the carriers” and “contains a bipartisan approach which would provide the government with advance notice of a carrier’s intent to change its data retention policies.”

The new language of the USA Freedom Act was a nonstarter in the Senate. The upper chamber blocked motion to proceed by Majority Leader Mitch McConnell, R-Ky., on the bill in a 57-42 a vote. The motion required 60 affirmative votes. Even if the Senate did proceed, House Republicans, including Rep. Jim Sensenbrenner, R-Wis., warned that the new language would not have the votes to pass the lower chamber.
“Senator Burr’s proposal to plug the so-called ‘holes’ in the USA FREEDOM Act is dead-on-arrival in the House. His bill is not stronger on national security, it is just much weaker on civil liberties,” Sensenbrenner said on Friday. “This is nothing more than a last-ditch effort to kill the USA FREEDOM Act, which passed the House 338-88.”

“If the Senate coalesces around this approach, the result will be the expiration of important authorities needed to keep our country safe,” he added.

McConnell tried to move forward with a simple two-month reauthorization of Section 215 of the USA Patriot Act, which expires on May 31. McConnell could muster only 45 votes, far short of the 60 votes required.

The scene got even more interesting when McConnell began making motions for unanimous consent to shorten the length of extension of the provision. The Republican leader first tried to extend the provision to June 8, but his home-state colleague, Sen. Rand Paul, R-Ky., was not having it.

“Reserving the right to object, we have entered into a momentous debate. This is a debate about whether or not a warrant with a single name of a single company can be used to collect all the records, all of the phone records of all of the people in our country with a single warrant,” said Paul. “Our forefathers would be aghast. One of the things they despised was general warrants.”

Paul has proposed a series of amendments to any attempt to reauthorize Section 215, including giving Fourth Amendment protections to records held by third parties and placing limitations on Section 213, the so-called “sneak-and-peek” provision, to only terrorism and espionage investigations.

“I started out the day with a request for six amendments; I’m willing to compromise to having two amendments at a simple majority vote,” Paul stated before objecting to McConnell’s consent agreement. “I think that’s a very reasonable position, and if we can’t have that and we can’t have an extensive debate over something we’ve had four years to prepare for.”

Seeing no path forward on reauthorization early Saturday morning, McConnell conferred with Minority Leader Harry Reid, D-Nev., on how they should proceed with reauthorization as the Senate entered into a week-long recess.

Shortly before the Senate moved onto other business before recessing for the week, McConnell announced that members would come back to Washington on Sunday, May 31 for a final chance to reauthorize Section 215.

Whether the opposition seen on Saturday morning will last through the week or some sort of agreement will be worked out between Paul and Republican leadership to allow him to offer amendments remains is unclear. But the scene in the Senate was encouraging for those passionate about the protections guaranteed by the Fourth Amendment.

Here’s Why Rand Paul’s “Filibuster” was Important

The 10-hour marathon speech by Rand Paul, the freshman Kentucky Republican senator, may not technically be considered a filibuster, but it served an important purpose, nonetheless, as the upper chamber seeks to close out its business before going into a week-long Memorial Day recess.

The Senate was in the midst of a debate over the proposed Trade Promotion Authority on Wednesday when, at 1:18 PM, Paul rose from his desk and began speaking against the Patriot Act, executive overreach, and the National Security Agency.

This was Paul’s second filibuster, loosely speaking, since he took office. In February 2013, the Kentucky Republican, for nearly 13 hours, filibustered the nomination of John Brennan to serve as the director of the Central Intelligence Agency over the Obama administration’s use of drones to target American citizens.

“There comes to a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now,” Paul declared on Wednesday. “And I will not let the Patriot Act, the most un-patriotic of acts, go unchallenged.”

Paul was joined by 10 of his colleagues, including Republican Senators Ted Cruz, Mike Lee, and Senator Ron Wyden and Joe Manchin, both of whom are Democrats.

Whether Paul’s latest marathon can be considered a filibuster is irrelevant. There was a method to his madness. Some, such as Reason’s Scott Shackford, have speculated that Paul and Wyden, both vigorous opponents of the Patriot Act, hope to include amendments to make the USA Freedom Act, which has already passed the House of Representatives, a stronger bill.

Paul did state that he plans to propose amendments to the bill, which is backed by Cruz and Lee, to ensure that the privacy of Americans is protected. But Wednesday’s speech may have served another purpose.

Section 215 of the Patriot Act is set to expire at the end of May, the Senate may not have enough time on the clock to pass what is expected to be a very close vote for reauthorization. Rather than the nearly six year extension of the Patriot Act that Senate Majority Leader Mitch McConnell, the senior senator from Kentucky, may be forced to settle for a short-term reauthorization to avoid sunset of the controversial provision. Paul, who opposes the USA Freedom Act without stronger provisions, would prefer to run out the clock on the provision, letting it expire.

The situation is fluid because McConnell has floated keeping the Senate in session through the Memorial Day weekend to strong-arm reauthorization, but most observers have speculated that there are not the votes to bypass a filibuster, with many members of both parties expressing a desire for reform.

Whether Section 215 survives is fluid at the moment, but Paul’s speech has already had a huge impact. The Department of Justice issued a statement on the status of the NSA’s illegal surveillance program.

“After May 22, 2015,” the release said as reported by the Associated Press, “the National Security Agency will need to begin taking steps to wind down the bulk telephone metadata program in anticipation of a possible sunset in order to ensure that it does not engage in any unauthorized collection or use of the metadata.”

It may be too early to declare victory, but it’s certainly within reach.

A lower court deferred to the Obama administration, upholding the legal basis for the domestic surveillance program, but the three-judge appellant panel reversed the decision, setting the stage for the case to go before the Supreme Court.

“This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation – a job in which, as the President has stated, ‘actions are second‐guessed, success is unreported, and failure can be catastrophic,’ with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms,” wrote Judge Gerard Lynch for the panel. “Reconciling the clash of these values requires productive contribution from all three branches of government, each of which is uniquely suited to the task in its own way.”

“[W]e conclude that the district court erred in ruling that Section 215 authorizes the telephone metadata collection program,” he continued, “and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates Section 215.”

As one might expect, the decision was hailed by privacy groups – including the American Civil Liberties Union, which filed the lawsuit to end the NSA’s domestic surveillance program. Hawkish Republicans were quick to condemn the decision, invoking the September 11 attacks and the rise of the Islamic State to promote fear in the minds of Americans.

During an appearance on CNN’s State of the Union, former House Intelligence Committee Chairman Mike Rogers (R-Mich.) complained “[t]he more we make this more difficult, the more likely we’re going to have [bad] event.”

Although Rogers is no longer rooming the halls of Congress as an elected official, others, such as Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.), are pushing for reauthorization of Section 215, using fear to advance their unconstitutional cause.

The House of Representatives will likely vote on the USA FREEDOM Act on Wednesday. This bill, according to Rep. Justin Amash (R-Mich.), is flawed because it actually authorizes the bulk collection of innocent Americans’ phone metadata.

Absent passage of worthwhile reforms, there could be enough votes in Congress to deny reauthorization of Section 215 before the provision expires, particularly in the Senate where there may be the votes to filibuster any extension. Still, that may not be enough. Some have speculated that the administration could continue the program without Section 215.

It’ll be interesting to see how it plays out, but no matter how it ends, we’ll find out soon who in Congress actually believes the rhetoric they espouse on the campaign trail and who is willing to cast aside privacy protections of the Constitution to give the federal government almost unlimited power to spy on Americans.

Don’t be surprised when Garland is used as an excuse to renew the Patriot Act

Supporters of the NSA’s domestic spying programs say that a vast data collection effort is needed more than ever to prevent terrorist attacks in the United States, but they are unable to point to any specific example of foiled terrorist plots through these unconstitutional, privacy-violating programs.

In June 2013, Gen. Keith Alexander, then the Director of the NSA, claimed that the spying programs prevented “potential terrorist events over 50 times since 9/11.” Testifying before a Senate committee in October of the same year, Alexander backtracked after Sen. Patrick Leahy (D-Vt.) grilled him for misleading the American public.

“There is no evidence that [bulk] phone records collection helped to thwart dozens or even several terrorist plots,” said Leahy. “These weren’t all plots and they weren’t all foiled. Would you agree with that, yes or no?” he asked the NSA chief.

Alexander, realizing he had been put on the spot for peddling misinformation, simply replied, “Yes.”

Of course Alexander was more honest than his colleague, Director of National Intelligence James Clapper, who lied about the NSA domestic surveillance program in a March 2013 Senate hearing. He was accused of perjury, although the allegation went nowhere in a Congress filled with pro-surveillance members.

The attack on Sunday evening in Garland, Texas at the “Draw Muhammad” event hosted by an anti-Islam organization will undoubtedly be used as a reason to reauthorize a soon-to-expire provision, Section 215, of the USA PATRIOT Act by which the federal government claims the vast authority to spy on Americans.

But such claims should be met with a large dose of skepticism. One of the suspects involved in the attack had already come across the FBI’s radar. The United States’ top law enforcement agency began investigating him in 2006 on the suspicion that he wanted to join a terrorist group in Somalia.

The alleged attackers in Garland are precisely are the needle for which the federal government claims that it needs the haystack, and intelligence and law enforcement officials failed to prevent what could have been a mass murder.

The NSA’s resources are spread too thin. Collecting the phone calls of virtually every American – the proverbial “haystack” – even if the people on the call are not suspected of any terrorist involvement, not only betrays the constitutionally protected rights defined by the Fourth Amendment, but also makes Americans less safe because intelligence agencies may not be able to connect the dots efficiently and effectively.

Rather than using the Garland attack as tool to further reauthorization of Section 215, which expires on June 1, lawmakers should seriously reexamine the approach to intelligence, requiring agencies like the NSA to focus on actual terrorism suspects as opposed to innocent Americans calling their families and friends.

Two congressmen have introduced bold bipartisan legislation that will fully repeal the police-state 2001 U.S. PATRIOT Act and substantially roll back the U.S. surveillance state that has metastasized in recent years.

The Surveillance State Repeal Act (H.R. 1466) was introduced on March 24 by Reps. Mark Pocan (D-WI) and Thomas Massie (R-KY), and it offers a great opportunity for Americans to restore lost liberty and privacy in one swoop.

“The warrantless collection of millions of personal communications from innocent Americans is a direct violation of our constitutional right to privacy,” said Rep. Pocan. “Revelations about the NSA’s programs reveal the extraordinary extent to which the program has invaded Americans’ privacy.

“I reject the notion that we must sacrifice liberty for security — we can live in a secure nation which also upholds a strong commitment to civil liberties. This legislation ends the NSA’s dragnet surveillance practices, while putting provisions in place to protect the privacy of American citizens through real and lasting change.”

“The Patriot Act contains many provisions that violate the Fourth Amendment and have led to a dramatic expansion of our domestic surveillance state,” said Rep. Massie. “Our Founding Fathers fought and died to stop the kind of warrantless spying and searches that the Patriot Act and the FISA Amendments Act authorize. It is long past time to repeal the Patriot Act and reassert the constitutional rights of all Americans.”

Libertarians and other defenders of civil liberties have cheered the bill.

Protect whistleblowers: Make retaliation against federal national security whistleblowers illegal and provide for the termination of individuals who engage in such retaliation.

Ensure that any FISA collection against a U.S. Person takes place only pursuant to a valid warrant based on probable cause (which was the original FISA standard from 1978 to 2001).

Retain the ability for government surveillance capabilities to be targeted against a specific natural person, regardless of the type of communications method(s) or device(s) being used by the subject of the surveillance.

Retain provisions in current law dealing with the acquisition of intelligence information involving weapons of mass destruction from entities not composed primarily of U.S. Persons.

Prohibit the government from mandating that electronic device or software manufacturers build in so-called “back doors” to allow the government to bypass encryption or other privacy technology built into said hardware and/or software.

Increase the terms of judges on the Foreign Intelligence Surveillance Court (FISC) from seven to ten years and allows their reappointment.

Mandate that the FISC utilize technologically competent Special Masters (technical and legal experts) to help determine the veracity of government claims about privacy, minimization and collection capabilities employed by the U.S. government in FISA applications.

Mandate that the Government Accountability Office (GAO) regularly monitor such domestic surveillance programs for compliance with the law, including responding to Member requests for investigations and whistleblower complaints of wrongdoing.

Explicitly ban the use of Executive Order 12333 as a way of collecting bulk data, which pertains to the collection and storage of communications by U.S. Persons.

Make no mistake: The bill faces an uphill battle in Congress. FreedomWorks chair Matt Kibbe called upon its 6.9 million members to fight for the bill, and created a web page where supporters of the bill can easily email this message to their representatives.

Libertarian Party chair Nicholas Sarwark called on all Americans who love liberty to create a grassroots campaign to support the Surveillance State Repeal Act, to contact their congressmen and women and urge them to support H.R. 1466, and to spread this message through social media and whatever other means possible.

In fact, Sarwick’s only complaint was that the bill, sweeping though it is, doesn’t go far enough.

“The Libertarian Party would like to see all aspects of government mass surveillance ended, including complete elimination of the secret FISA court whose work issuing warrants for terrorist and criminal suspects can be easily assumed by existing federal courts,” said Sarwark. “But this bill is a good first step.”

Hey: the Republican Party National Committee has gone all Edward Snowden on us.

In what TIME magazine calls “the latest indication of a growing libertarian wing of the GOP,” the Republican National Committee (RNC) passed a Resolution on January 24 calling for Republicans in Congress to conduct a public investigation into the “gross infringement” of Americans’ rights by National Security Agency programs and to repeal much of the NSA’s PRISM surveillance programs on Americans.

The “Resolution to Renounce the National Security Agency’s Surveillance Program” denounces what it called the “largest surveillance effort ever launched by a democratic government against its own citizens… the surveillance of U.S. citizens on a vast scale and [the monitoring of the] searching habits of virtually every American on the internet…”

The remarkable document, while not binding on any GOP member, passed by an overwhelming majority voice vote.

The Resolution boldly declares that “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution” and says “unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this [PRISM] program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act…”

Further, the Republican National Committee “encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court…” and they urge Republican lawmakers “to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying…”

This committee, says the RNC, “should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance…”

Good stuff! And there’s more. You can read the whole Resolution at TIME’s web site.

However, you’d also be wise to be skeptical, as journalist John Glaser astutely notes at Reason.com’s blog. After all, reminds Glaser, this is “the party that stood by President George W. Bush when he secretly (and illegally) ordered the NSA to spy on the domestic communications of Americans without any warrants at all.”

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